MBE EVIDENCE Flashcards
MBE EVIDENCE: Witnesses; Competence
When a witness is a non-expert, what is required of that witness in order to testify?
A non-expert witness must have personal knowledge of a matter in order to testify.
MBE EVIDENCE: Witnesses; Competence
When a document has already been introduced into evidence, can other evidence be introduced that contradicts such document?
When a document has already been introduced into evidence, the best evidence rule does not prevent the introduction of evidence that contradicts the document.
MBE EVIDENCE: Hearsay Exceptions; Declarant’s Availability Immaterial
Pl calls a medical specialist about the statement Pl made to him. Can this specialist testify as to this statement made by Pl?
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. If it is offered for its truth, then, in order for the specialist to testify, there must be an applicable hearsay exception.
Hearsay exclusion: A statement describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical diagnosis or treatment. Declarant’s (Pl’s availability) is not relevant to the admissibility of statements made for medical diagnosis or treatment under this exception.
Statements made as to the D’s intent in causing the accident/injury are not reasonably pertinent to the Pl’s diagnosis or treatment.
MBE EVIDENCE: Hearsay Exceptions; Declarant’s Unavailability as a Witness
Present Sense Impression- Hearsay Exception
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and is not admissible unless it falls within an exception.
Offered as proof of what it asserts - will be admissible as the declarant is describing the event as she perceives it. (PRESENT SENSE IMPRESSION) - Need that as the Declarant is not testifying here.
Non-hearsay - not offered for the truth of what is asserted
MBE EVIDENCE: Best Evidence Rule
When does the Best Evidence rule apply?
The best evidence rule only applies when:
(i) material terms of a writing are being proven; or
(ii) a witness is relying on the writing when
testifying.
MBE EVIDENCE: Presentation of Evidence; Introduction of Evidence
When a Defendant seeks a hearing outside the presence of the jury to determine the admissibility of a confession prior to the officer’s testimony, must the court grant the Defendant’s request?
The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence. whether a privilege exists and whether a person is qualified to be a witness.
Hearings on preliminary matters MUST be conducted outside the presence of the jury when the hearing involves the admissibility of confessions, when a D in a criminal case is a witness and so requests, or when justice requires it.
Thus, the judge must grant the D’s request.
MBE EVIDENCE: Witnesses; Impeachment
Is a specific instance of conduct admissible to attack or support the witness’s character for truthfulness?
Generally, a specific instance of conduct is not admissible to attack or support the witness’s character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct IF IT IS PROBATIVE OF THE TRUTHFULNESS OR UNTRUTHFULNESS of the witness.
MBE EVIDENCE: Relevance; General Considerations
The general rule is that evidence must be relevant to be admissible. All relevant evidence is admissible unless excluded by a specific rule or law.
Can relevant evidence ever be excluded?
Yes. Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
**When the relevance of evidence depends upon whether a fact exists, the court may admit the proposed evidence on the condition that the proof of its relevance is introduced later.
MBE EVIDENCE: Hearsay Exceptions; Declarant’s Availability Immaterial
When a declarant (witness) offers up a document such as a computer printout of an email she sent to support her alibi as to her whereabouts, should the court admit or exclude the evidence of the printout of the email?
A statement of the declarant’s then-existing state of mind or emotional, sensory or physical condition is not excluded as hearsay and may be admitted to show present intention, motive or plan to prove conduct in conformity with that plan.
Evidence must be probative–In order to be probative, the evidence must merely have a tendency to make a fact more or less probable than it would be without the evidence. Beyond that test, it is up to the jury to determine the weight to give the email in determining whether to believe the D’s alibi.
MBE EVIDENCE: Witnesses; Impeachment
Can a witness be impeached on the basis of bias or interest?
Yes. A witness’s bias or interest is always relevant to the credibility of her testimony. and consequently, a witness may be impeached upon that ground.
Thus, the defense is permitted to cross-examine the witness to reveal the witness’s possible motive to falsely accuse the Defendant.
Scope of cross-examination is generally limited to the subject matter of direct examination and the credibility of the witness.
MBE EVIDENCE: Hearsay Exceptions; Unavailable Declarant
How does a declarant’s statement qualify as a dying declaration for purposes of admissibility?
A statement qualifies as a “dying declaration” IF
(i) the declarant believes that her death is
imminent; and
(ii) the statement pertains to the cause or
circumstances of the death she believes to be
imminent.
Declarant must be unavailable to testify, but the declarant need not have actually died in order for the statement to avoid exclusion as hearsay. However, the dying-declaration exception applies only in homicide prosecutions and civil cases.
